Suits Challenge Missouri Over Secrecy About Execution Procedures

Two suits were filed Thursday in Jefferson City challenging Missouri officials for failing to disclose information about the drugs the state uses in lethal injections.

In the first, The Associated Press and four other news organizations argue that the state's actions prohibit public oversight of the death penalty. The second suit, under the state sunshine law, was filed by Chris McDaniel, a reporter for St. Louis Public Radio, the Reporters Committee for Freedom of the Press and the American Civil Liberties Union of Missouri. It challenges the state's refusal to disclose information and documents relating to executions.

Chris McDaniel

Credit (St. Louis Public Radio)

McDaniel, along with Veronique LaCapra, has reported extensively on Missouri's lethal injection process and disclosed the previous supplier of the drug to the state. He has numerous Sunshine Law requests pending to gain more information.

The AP lawsuit asks a state court judge to order the Missouri Department of Corrections to disclose where it purchases drugs used to carry out executions along with details about the composition and quality of those drugs.

"We assert that there is a constitutional right for the public to know the drugs that are used when a state puts someone to death," said Dave Schulz, an attorney for the news organizations and co-director of the Media Freedom and Information Access Clinic at Yale Law School.

A spokeswoman for Missouri Attorney General Chris Koster, Nanci Gonder, declined to comment when asked Thursday about the lawsuit.

Missouri is among the many U.S. states that refuse to disclose where they purchase execution drugs, their makeup and how they are tested.

The sourcing of execution drugs has become an issue nationwide since major drug makers, many based in Europe, began to refuse selling their products if they were to be used in an execution.

Many states have turned to compounding pharmacies, which are not as heavily regulated as traditional pharmaceutical companies but are able to make the required drugs. Several have refused to name their supplier, sometimes citing security concerns and threats to the pharmacies.

Asked about these threats, law enforcement officials in several states have told the AP they do not know about them, are not actively investigating them or do not consider them to be serious.

Under its so-called "Black Hood Law," Missouri prohibits naming anyone who is part of the "execution team." The Missouri Department of Corrections considers the drug provider part of that team.

The law in question reads:

“[t]he director of the department of corrections shall select an execution team which shall consist of those persons who administer lethal gas or lethal chemicals, and those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals. The identities of members of the execution team, as defined in the execution protocol of the department of corrections, shall be kept confidential.”

Both the AP/Guardian lawsuit and the McDaniel/ACLU lawsuit challenge including the compounding pharmacy as part of that definition, saying the Department of Corrections’ new interpretation of the Black Hood Law goes over broad.

“Corporations are not ‘persons’ for the purposes of personal privacy protections under freedom of information laws,” reads a line in the McDaniel/ACLU lawsuit. The AP/Guardian lawsuit argues:

“DOC’s revised statutory reading renders the word ‘direct’ a nullity. According to the Merriam-Webster Dictionary, direct support ordinary means ‘marked by an absence of an intervening agency, instrumentality, or unfluence.’ On DOC’s reading of the statute, the identity of anyone who provides equipment or supplies during the lethal injection execution would be confidential under the statute.”

Emily Grannis, the Jack Nelson legal fellow at the Reporters Committee for Freedom of the Press, said the state’s secrecy makes it impossible for the public to have an informed debate about the death penalty.

“The public should be able to look at this and say, ‘OK, so maybe they’re using compounded drugs, but as it turns out, we don’t care.’ If that’s the public’s answer, that’s the public answer, but shouldn’t people be able to have an informed discussion about this,” she said. “That’s really what we’re trying to achieve.”

Constitutional Claims

In addition to Sunshine Law violations, the AP/Guardian suit seeks to expand on the public’s First Amendment right to access certain governmental proceedings.

Historically, the lawsuit says, the public was afforded the right to attend executions, either in person or via members of the press. That right, it’s argued, should be extended to include the names of pharmacies and labs involved.

“Making that information available will improve how the process works, and is essential for democratic oversight for citizens to be able to weigh in on whether or not they want this to go forward,” said David Schulz, the is co-director of the Media Freedom & Information Access Clinic at Yale Law School, which is representing the AP in its lawsuit.

Schulz and attorney Bernard Rhodes also claim that by keeping the name of the pharmacy secret, the DOC is “intentionally thwarting the right of interested parties to engage in constitutionally protected activity” – that is, reporting on the death penalty in Missouri.

Executions In Missouri

McDaniel and reporter Veronique LaCapra, who is not a party to the pending suit, have been pursuing the identity of the pharmacies used in Missouri for more than six months, and filed more than a dozen open records requests. Using the information in heavily redacted documents provided by the Department of Corrections, as well as from other state departments, McDaniel and LaCapra were able to identify the Apothecary Shoppe in Oklahoma as a supplier of the drugs for executions in November, December and January. The compounding pharmacy was not licensed to do business in Missouri and had been cited in the past by Oklahoma regulators.

An inmate who has since been executed sued the Apothecary Shoppe. The lawsuit was settled confidentially, but McDaniel learned that the pharmacy had agreed not to supply drugs for that specific execution. The state acquired a new supplier for its executions in February, March, and April. No information about the identity of that pharmacy is known. A seventh man, Russell Bucklew, is scheduled to be executed on May 21. An eighth execution is scheduled for June 18.